M. Jaya Shankar vs J. Pampapathy and Others

S.N. Satyanarayana, J.—Second defendant in O.S. No. 51/2006 has come up in this second appeal against the concurrent findings of both the Courts below in decreeing the suit of the plaintiff for the relief of specific performance.

Brief facts leading to this second appeal are as under:

"Plaintiff in the original suit namely, J. Pampapathi, is the agreement holder for purchase of suit schedule property under registered agreement of sale dated 20.01.2005 from the first defendant - E. Basappa, owner of land bearing R.S. No. 53/1 measuring 4 acres 19 cents situated in Aladal village of Bellary Taluk and District. The case of the plaintiff is that the first defendant - E. Basappa wanted to sell the suit property. Hence, he approached the plaintiff and offered to sell the same for valuable consideration in a sum of Rs. 1,20,000/-. In that behalf, an agreement of sale was entered into on 20.01.2005 which was registered in the Office of the Sub Registrar. At the time of entering into the agreement a sum of Rs. 85,000/- was paid as advance sale consideration and balance Rs. 35,000/- was agreed to be paid by the plaintiff within one year from the date of agreement and first defendant had agreed to convey the suit schedule property in his favour. It is the further case of the plaintiff that the defendant failed to come forward to execute the sale deed. Hence, a legal notice was issued on 30.11.2005 and thereafter he filed suit for specific performance on 20.01.2006. Initially the suit for specific performance was filed against the first defendant alone. On service of notice defendant entered appearance and filed written statement contending that he had not agreed to convey suit property to plaintiff for consideration of a sum of Rs. 1,20,000/-, denied execution of agreement of sale which is at Ex. P.1 and contended that the said document was executed by him under the belief that he is executing a mortgage deed in favour of plaintiff for the loan of Rs. 50,000/- said to have taken by him. It was also contended that he sold the suit property to one Jayashankar for Rs. 2,00,000/- vide agreement of sale dated 03.07.2004 and that, on the date of agreement he received Rs. 50,000/- and subsequently on 10.12.2004 he received another sum of Rs. 25,000/- and the balance sum was received by him on 12.04.2005, on which date he sold the suit property in favour of Jayashankar. It is seen that after the written statement was filed, plaint was amended and Jayashankar was brought on record as second defendant. After service of notice, Jayashankar entered appearance and filed written statement. In the written statement initially filed on 22.02.2007 at paragraph No. 11 he stated that the property is purchased by him for Rs. 1,25,000/- under the registered sale deed dated 02.04.2005, however, subsequently he sought amendment of the written statement by filing an application and subsequently on 25.07.2005 he amended the written statement by carrying out several correction in the written statement. However, the sale consideration which was in paragraph No. 11 at Rs. 1,25,000/- remained undisturbed. However, in the amended written statement which was filed by him on 05.09.2007 in paragraph No. 11 the sale consideration is corrected as Rs. 2,00,000/- to match with the defence raised by the first defendant to show that suit property was sold in his favour. Therefore, it is seen that there is inconsistency in the original written statement and the one, which is subsequently amended."

On the basis of the pleadings of parties, the following issues came to be framed in the original suit.

ISSUES

"1) Whether the plaintiff proves the execution of suit agreement by defendant No. 1 and passing of part consideration of Rs. 85,000/-?

2) Whether the plaintiff is ever ready to perform his part of contract?

3) Whether the defendant No. 2 is a bonafide purchaser of suit property?

Additional issues:

1) Whether the plaintiff proves that, defendant No. 1 has executed the sale deed in favour of defendant No. 2 after filing of this suit in order to defeat suit agreement?

2) Whether the plaintiff is entitled for the relief of decree for specific performance?

3) What order or decree?"

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In support of the said issues plaintiff examined himself as P.W.1 and also examined two other witnesses by name Peer Sab as P.W.2 and Shankar as P.W.3. The second witness-P.W.2 is a witness to the transaction and he is also a witness to the agreement of sale-Ex. P.1 and his signature is at Ex. P.1(c). P.W.3 is the author of Ex. P.1. Per contra the first defendant examined himself as D.W.1 and the subsequent purchaser-Jayashankar as D.W.2, they also examined two other witnesses, namely D.W.3 and 4 who are stated to be the witnesses to agreement of sale dated 03.07.2004 which is at Ex. D.1. The Court below on appreciation of the oral and documentary evidence available on record proceeded to answer issue Nos. 1 and 2 which were framed to consider the genuineness of registered agreement of sale dated 20.01.2005 and also regarding readiness and willingness of the plaintiff, in the affirmative and answered additional issue Nos. 1 and 2 which were framed to consider, whether the plaintiff proves that defendant has executed sale deed in favour of defendant No. 2 after filing of the suit in order to defeat the suit agreement, in the affirmative. Second additional issue regarding plaintiff''s entitlement for the relief of specific performance was also answered in the affirmative and coming to the original third issue, i.e., bonafide nature of sale transaction between the first defendant and second defendant was held to be in the negative and consequently decreed the suit.

Being aggrieved by the judgment and decree dated 01.08.2008 passed in O.S. No. 51/2006 defendant No. 2 in the original preferred appeal in R.A. No. 144/2008 on the file of District Court, bellary on the ground that the finding on first additional issue is erroneous in holding that the sale deed executed in favour of the appellant-second defendant is subsequent to filing of suit and also on the ground that appreciation of evidence by the trial Court in holding that the second defendant was aware of the registered agreement of sale between plaintiff and defendant No. 1 at the time of getting the sale deed dated 12.04.2005 executed in his favour is incorrect and also tried to contend that the pleadings and evidence is not properly appreciated by the trial Court while considering prayer of the plaintiff for the relief of specific performance. In the said appeal the lower appellate Court framed the following points for consideration.

POINTS

"1) Whether the judgment and decree passed by the trial Court in decreeing the suit of the plaintiff dated 1.8.2008 calls for interference under this appeal?

2) Whether the application filed by the applicant U/o 41 R. 23 and 27 of CPC for leading additional evidence is maintainable?

3) What order?"

After hearing the counsel appearing for both the parties the lower appellate Court answered both the points for consideration in the negative concurrently, confirmed the judgment and decree passed by the Court below. While doing so, declined to consider the prayer of appellant for production of additional documents and also permission to lead additional evidence.

Being aggrieved by the same, second defendant in the original suit who is the appellant in R.A. No. 144/08 has come up in this second appeal impugning concurrent findings of both the Courts below in decreeing the suit of the plaintiff as well as rejecting his appeal in the lower appellate Court.

Heard the learned counsel for the appellant regarding admission.

It is the contention of the appellant that the concurrent findings rendered by both the Courts below is erroneous and the same is required to be set aside for the reason that as on the date of filing of the suit the plaintiff was aware that the suit schedule property was already registered in favour of second defendant. Despite having such knowledge he ventured to file suit only against the vendor in Ex. P.2, namely the first defendant and tried to secure the relief of specific performance against a person who has already given up title to the suit schedule property. Consequently, finding of the trial Court and the lower appellate Court in holding that the sale deed in favour of second defendant is subsequent to filing of the suit is erroneous for the reason that the suit is filed on 20.01.2006 and whereas the sale deed in favour of defendant No. 2 who is the appellant herein was executed much earlier on 12.04.2005. Therefore, there is an error in appreciating the pleadings and evidence available on record. It is further contended that filing of the suit itself is defective for the reason that the plaintiff who is seeking relief of specific performance in respect of agricultural land should have filed the R.T.C. along with the plaint, in the absence of the same the suit is liable to be dismissed for non filing of the said document.

Heard learned counsel for the appellant as well as the respondent and perused judgments of both the Courts below. On going through the same it is seen that the plaintiff being the agreement holder for purchase of suit schedule property is entitled to seek performance only against the plaintiff who is the author of the agreement. No doubt it is necessary that the plaintiff ought to have arrayed the subsequent purchaser as necessary party to the proceedings. But, in any event non inclusion of the subsequent purchaser at the time of filing of the suit in itself will not vitiate the suit as being incomplete and deserves to be rejected on the said ground. Though the evidence discloses that there is a statement by first defendant with reference to suit schedule property being sold in favour of second defendant prior to filing of the suit was in the knowledge of plaintiff, there is nothing on record to demonstrate that particulars of such sale transaction was made available to plaintiff by the 1st defendant. Therefore, in the absence of the same being informed to the plaintiff to expect him to file suit against subsequent purchaser at first instance is not justified. In any event in the present suit after filing of the written statement by 1st defendant indicating that he has already sold suit property in favour of second defendant after bringing the same on record in the form of written statement the plaintiff has immediately taken steps to implead the subsequent purchaser as necessary party to the proceedings and also sought for direction to him to execute sale deed along with the first defendant pursuant to registered agreement of sale vide Ex. P.1 which appears to be just and proper. Therefore, this contention does not hold water.

So far as the second contention that both the Courts have not properly appreciated the evidence appears to be correct for this reason while framing issue and answering that issue, an error has crept-in in stating that subsequent to filing of the suit sale deed is executed by the first defendant in favour of second defendant which is erroneous. In any event, that by itself will not vitiate the judgments while discussing issue Nos. 1 and 2 as well as additional issue Nos. 1 and 2 in the original suit, the Court below has examined all the documents and also discrepancy in the written statement filed by the first defendant wherein he has stated that he entered into an agreement on 03.07.2004 agreeing to sell the suit property in favour of second defendant for valuable consideration of Rs. 2,00,000/-. It is also stated that under the said agreement he has taken advance on two occasions, amounting to Rs. 75,000/- and balance Rs. 1,25,000/- was required to be paid at the time of execution of the sale deed, however, sale deed which is produced and marked in the trial Court, would indicate that the sale consideration itself is Rs. 1,25,000/- Admittedly, the agreement dated 03.07.2004 is an unregistered one and all payments are cash payments. Therefore, as against the registered documents vide Ex. P.1, it is difficult to accept correctness of Ex. D.1, agreement of sale between first defendant and second defendant, which is rightly observed by the Courts below. Though it is seen that in the discussion on pleadings and evidence that the sale deed of the suit property is executed by first defendant in favour of second defendant prior to filing of the suit, while answering issues it is seen that there is a mistake as to date of sale. Since reason given for answering the issue being correct, the said mistake can utmost be taken as a typographical error and not as improper appreciation of evidence or plea by the Court below.

So far as the third ground which is said to be the legal ground is in respect of application of Section 131(1) of the Karnataka Land Revenue Act, 1964, which mandates filing of R.T.C. along with the plaint, is in respect of transactions which are covered under Chapter 9 of the said Act which deals with reference to suits filed challenging the changes in the revenue records. Therefore, application of the said section does not apply to the suit for specific performance, in the facts and circumstances of the case. Therefore, the said legal contention holds no water so far as the present litigation is concerned. Hence, the same cannot be considered in this second appeal. In that view of the matter, this Court feels no grounds are made out to interfere with the concurrent findings of both the Courts below in decreeing the suit of the plaintiff for the relief of specific performance. Hence, in the absence of any substantial question of law arising for consideration in this second appeal, the same is liable to be dismissed at the stage of admission. Accordingly, this second appeal is dismissed.